You are on page 1of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 07-4096

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
versus
RICHARD CARROLL OLIVER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
District Judge. (5:06-cr-00078-D)

Submitted:

July 20, 2007

Decided:

August 3, 2007

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,


Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Richard C. Oliver pled guilty to possessing a firearm
after having been convicted of a crime punishable by a term of
imprisonment

exceeding

one

922(g)(1) and 924 (2000).

year,

in

violation

of

18

U.S.C.

The Government moved for an upward

departure under USSG 4A.3, 5K2.6 because Olivers criminal


history category under-represented the seriousness of his criminal
history or the likelihood that he would commit future crimes, and
because the firearm was used in the commission of the offense.

The

district court upwardly departed two levels, sentencing Oliver to


68-months in prison.
Oliver appealed his sentence and contends his sentence
was unreasonable because the district court erred in upwardly
departing from the advisory guidelines range.

He argues that the

conduct underlying the departure for discharging the firearm was


already accounted for by the four-level enhancement under USSG
2K2.1(b)(6) for using a firearm in connection with another
felony, thus the departure amounted to double-counting. Finding no
error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing

guidelines.

In

reviewing

sentence

outside

the

guidelines range, this court must consider whether the sentencing


court acted reasonably both with respect to its decision to impose

- 2 -

such a sentence and with respect to the extent of the divergence


from the guideline range.

United States v. Hernandez-Villanueva,

473 F.3d 118, 123 (4th Cir. 2007).

A sentence is unreasonable if

the court provides an inadequate statement of reasons or relies on


improper factors in imposing a sentence outside the properly
calculated advisory sentence range.

Id.

A district court may

depart upward from the guidelines range under USSG 5K2.6 if a


firearm was used or possessed.

The extent of the increase

ordinarily should depend on the dangerousness of the weapon, the


manner in which it was used, and the extent to which its use
endangered others.

Specifically, the discharge of a firearm

might warrant a substantial increase.

USSG 5K2.6.

The district court granted the upward departure because


it found the weapon was fired by Oliver in the vicinity of the
intended victim and in the direction of a bus occupied by children,
and was an attempt to cause serious injury to the victim.
court

found

this

conduct

was

not

part

of

calculations and merited an upward departure.

the

The

guideline

The four-level

enhancement under USSG 2K2.1(b)(6) accounted for Olivers attempt


to cause serious harm to the victim, but did not account for the
extreme recklessness in discharging a firearm in the vicinity of
uninvolved children.

Thus, the upward departure did not amount to

unlawful double-counting. In the alternative, a departure pursuant


to 4A1.3 is encouraged, provided that the criminal history

- 3 -

category does not account adequately for the defendants past


criminal conduct or the likelihood that he will commit other
crimes.

United States v. Dixon, 318 F.3d 585, 588 (4th Cir. 2003).
The

district

court

sentenced

Oliver

post-Booker

appropriately treated the guidelines as advisory.

and

The court

sentenced Oliver after considering and examining the sentencing


guidelines and the 3553(a) factors, as instructed by Booker. The
district

court

accepted

the

facts

found

in

the

presentence

investigation report, and the testimony of the witness to the


conduct, and found Olivers offense level to be 23 and his criminal
history score to be III, for a corresponding advisory guideline
range of 57 to 71 months.
The district court examined the 3553(a) factors and
concluded that the factors set forth therein supported an upward
departure from the guidelines range.

The court discussed the

seriousness of Olivers offense and the risk it created to both the


victim

and

the

children.

Moreover,

the

court

looked

at

the

likelihood that Oliver would commit further crimes, the need to


protect the public, and his extensive criminal history.

The court

imposed the 68-month sentence to afford adequate deterrence from


future criminal acts and to promote respect for the law.

On this

record, we have no difficulty concluding that the district court

- 4 -

sufficiently articulated its reasons for the departure from the


guidelines range.*
Accordingly, we affirm the district courts judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

The district court need not discuss each factor set forth in
3553(a) in checklist fashion; it is enough to calculate the
range accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less. United States v. Moreland,
437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006)
(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
- 5 -